Karnataka High Court
State Of Karnataka vs Raghavendra @ Raghu S/O S V ... on 19 January, 2011
Author: Manjula Chellur
Bench: Manjula Chellur
"Q3?
EN TFIE HIGH" COURT OF KARNAT,AKE\,
PRENCIPAL E3131? Cf--I KI" BANGALORE
i")a'i.ed: This the 191-" d.21yofJ2mL1.21ry, 28:} 1. 'V'. '
PRESENTJ _
firm: HON' BLE MRS JUSTICE :MAI.'3EJLI:LA'
Ai\iE1.. _V
THE HON' BLE3 MR. JUSTICE'KN.I€ESHAVAAI§§AI{{§iYANA
CRIMINAL N9. .}':398f/2906 &
CRIMINAL REVISION 1éE'1fI*rj:oN. Na 6556/2006
In Criminal. No.
STATE OF -- -
THROUGH CHICKA3ALI;ApLI{g'TA-- ._Q.WN
POLICE. . ,_ ...APPELLANT
[By Mr. G;;'i":">h.;1vara;_i'S,ixIég}11, SP?)
RAf}}i:ZXVE;\}'IffVF%;¢;V "@."m~G21LJ
Vs/0 S-V DODD£\j{ONDAPPA
' R/AT KSRTCV' BLIs§.«' STAND
- T CIé¥ICKBALI,AI%UR
... RESPONDENT
, mg. sR1£§:IvAsA) Crirninaj Appeai is filed under Section 377' Cr.P.C. Abj.%"V.3i,.he SPF for the State pray1'r1g (:0 enhance the ser1ter1.ce M/..
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case was registered and investigatioxi was take:ri_ up. After completion of investigation. charge sheet: to be filed against the accused for the offences.uf5t1I1.isi'1abl:e"t V' under Sections 504 and 328 IPC. ».
4.The accused pleaded' riot leveiled against him and claimed be H'
5. Before the Iea1u"4':z--3.e.¢1'V prosecution in order to the accused, examined as" and got marked EXS.P.:[: ihieiviidvefence of the accused was onexiof totai that of false implication. The 1eai':aed'_'Magistra.te after hearing both sides aa(:i«--.on ,asses_sm__er1t of ora} and documentary evidence, igyfhie VV.jLa{--iioig:r'1fs:.ei;1t dated 13.12.2004 held that the 'eproseéetgtioenhiias proved the guilt of the accused for the iuunishabie under Section 326 IPC and
-.i.'.3o:';seou.en.t1y, convicted the accused for the offence 4 6 punishable under Section 326 113C and zicquitted him for the offence punishable under Section 504 of IPC. The accused was sentenced to undergci simple imprisonment for one year and to pay a fine V. for the offence punishable under Sect.io1i«'.__::32£3.:
Aggrieved by the said judgment ofAAco'ri*.'.ic*t.:ion of sentence, the accused Sessions Judge, Kolar 'No. 105/2004, which firesiding Officer, Fast Track The Presidiiigwfiffieera'of"th'€.:E'ast' Court by judgment dated the finding of the learned Mté§gis'trat.e A'cor1§ricting the accused for the ipwuri-isha1:d)V1eV"'tinder Section 326 113C, reduced the sseriteiiceihigrisonnient. to 9 months and affirmed the sentence~~of:Atf1ne of RS500/~. Questioning the of sentence State has filed the appeal while o."t2he-aectised presented Revision Petition questioning the ..Corret:t;ness of the judg"rne.nt of the Courts below 'ml Cenvietirig him fer the offence punishable 1}171d€'}f" Section 326 IPC.
7.We have heard Sri Bhavani Singgfti, vl.eaff1efi'~e "
Additional SP?' for the State and Sri s;~;mty3;gt.eaeameat' V' Counsel for the accused.
8. We have perused the"'r.eee;*dsttanttjtzdgment of the Courts below. A _ V _ AA »
9. As some be_s_ef¢n i3f0t:1"the'~j;;.:igment of the learned tifie €3.,e'étr:_téc:tvflfaeietrate by placing relianeag __P.Ws. 1 to 3 coupled with the medical exficience has that the evidence on record C}€a.ITi1::'§I'V eetabIis'hee_____t3iat the accused assaulted P.Ws.2 »a;n'd_VVcausted "'*him grievous injury with 3. dangerous fiveepext and therefore, he is guilty of the U_effettceiggtittishable under Section 328 IPC. The said V' has been affirmed by the iearned Additional Sessions Judge.
£0. The learned Counsel for the accused vehemently contended that. the Courts below have committed serious error in holding that the pI°osec_:::tioI1 has proved the guilt. of the accused for the punishable under Section. 326 IPC. H the evidence on record does notIséitisfa.ci;orilydlpfove'die':
incident alleged as the evidence 3* corroborated by any indepenvdent. wit11e_sse_s two independent witnesse§...._§5><a_«in'ine--d theldnrovsecution have turned hostile. It is s.--Lib'1n'iss.ion that P.Ws. 1 to Bibeing evidence cannot be the sole. basis_'foi=._:recording the conviction in the ai:)sence of any coi*robofEition. It is also his submission. 'll."'*thailg--.Ee':ve1<1. i"f._the eifildence of P.Ws.l to 3 is accepted to an incident of assault on P.W.2 by the'---..__ac_cusVefd. in the absence of any cogent and Vlocgrepiable evidence that the accused has caused gicievous hurt to P.W.2, the Courts below could not have ~~-ennvicted the accused for the offence punishable under /3 Section 326 1136., and at beet act committed by the accused would only attract the offence punvis1fr&tb3.e under Section 823 or 324 IPC. He further ~ assuming that the accused cQn:1»ri1itted Vaets4_"_}_as._V ' edleged by the prosecution, the on produced before this C0urtV»wé5L:V1d indicate: {vas " V suffering from Paranoid. Seh:.::enfirenie e\'ren-prieir to the date of the incident to have been committed u7§:.Lg.1:{:;i: he would fall within the under Section 89 of M31" M t}.iiVé{tV'V§havif1g regard to the lenient View may be takenif this Ceuft %we§é to hold that the accused is t Vt guaztgimitzhe Qffeneeefllieged against him. "Contra, Sri Bhavani Singh, iearned Adtiitionai Sought to justify the judgment ef the fielow with regard to the Conviction for the puniehabie under Section 326 IPC. According to 10 hi13L the jtxdgment. of the Co'L.m':s below does not gaffe? from any perveleity or illegality since both the C,?§tiItS below heme eoncu3:re1at.1y heid that the exridenee"ofjI?,Weg. 1 to 3 is cogent and eoI1sisteI1t and the1"e_a;=e.. 1*'c'~§etSOI1$" 2 to disbelieve their testimony, {h€VI'f_v€3fOT."(:_i1'].'(?If€3aiS-f1("3V}E.1f'£'tE>}7A committed by the Courts beiovy int'i1,_o1ding:'thAevaeeolsevd guilty of the offence IPC.
He further submits t:he.t'ot'os.e_c:ution has not placed radiologj.-colt report? to ShOW that in the cross« ex'amir1éttor1 12 the doctors, who treated__P.Vv'.2 -hospitais, the defence has not eha11engeg_1""'that P.W.2 had sustained fracture of 4'oeeipiVta1 hone; therefore the prosecution has é_ satV_i;s~taetAorjV1y 'est,3.};;_1_isheci that P.W.2 had sustained :griheHv9ou'S.A'§1ui't._within the meaning of Section 320 IPC as Cejeafitétion recorded by the Courts below for t,he"{)ffeI'.1eee: jptinishable under Section 326 IPC is sound
-- ar1Ct"reé3.so'I1'ab1e. He submits t,hat the sentence awarded
5.;
by the Courts below is grossiy' iri21dequa.t.e having regard to the nature of the injury sustained by PLW .2. According to him, the Courts below have K bite sentence, therefore the sentence aW;ird.edfb§;n the-.d_& Courts below is liable to be enh:§i1.1c:ed' in mind the nature and gravity of the 'offen(:e-"as:'also':the injury sustained by P.W.2. that with regard to the p1e;§~..,,9f aeeiised, the accused did nottake siigjhe ié'it;herj_h:efore the tria} Court or befoi§e4ti:;ire'_}ox;i}'er 'Cotirt, therefore, it is not openmto' point for the first time beiore«.this further submission that even_if_ thevirhieh has been produced before ' it 'thig.._({';oiirt by thedéieeused in the revision petition filed Iihini. as true and correct, it would only indi-e__ate_ the accused was found to be suffering from dd""'--._V:"ParanoidSchizophrenia subsequent to the date of the " , 'irV1e:id--ent and no doeurnent is produced even before this ,Coui'i: to Show t.ha1::_ prior to or on the date of the i:o.CideI1t, the accused xxras suffering from such mental disorder to fall under gerieral exception under Section 89 of IPC. TI1€*I'(:fO1"(-3% he submiizs that: the accused .is'--not. entitied for the benefit. under Section 89 of he sought for dismissal of the revision the accused and for enhanee';ment.4' offl se1'iV1;e'nee"'hy aiiowing the appeal filed by v_he
12. We have bestoxvedttvtjititifltrt'serioiis. e(;tiside1etions to the submissions cioseiy scrutinised the oral 33¢.
rdcircumstanees of the ease, the pointsoor consideration are:
Courts below are justified in the accused for the offence dpiiniishable under Section 326 IPC 'P and ' b}t'WV1r1ethe'r the order of sentence passed by the Courts below is just and proper or whether it is liabie to be ii1terfe.red. with '?
14. The pe:'usa1 of the records inci.ieai'.e that: P.W$. 4 and 5 who are said to be the inciepehdem:_ eye Vvitnesses 1"1ax-re r1011 s3L1pport.ed the ease pr0S€Ci,Et.iO}'1 and both have been treated ' therefore their evidence is of he ...ass§'st.arit:e tie._'_:hr;._V V' prosecution. Therefore, the prosé'C'ut.ioh p1ar;ed.vre1i:ei11ee'.. on the testimony of P.Ws. I
15. P.W.} is E1/1€..C0I}}'§}:'E1i:iga'{§Vt'2_'. ACeo:'u.in§ to her evidence, irnmediately arter' t11e'V¥"i}'1ci_de1f1t.,"she shifted her father thereafter, the police came to the hodpitai an oral complaint about the i'A11cViden"t" a_§hd..he1*". 03:31 complaint: was reduced into Jv"'vwr1t3.f§g%,.,as per' P.W.1 in her oral evidence has
-rei.teeufat:ev"d._'hthe._e._§.;ate.ment, made by her in the cornpieunt, abodt 1:r1'eidder1t.. It is her say that. on the date of the Z'""--__VV"%r;CTi<1ehvt,5hi' her sister A P.W.3 was pedaling the cycie _dot;1t.si.de the house, at that time, the accused pelted ~..s--tor1e at' P.W,3 and irhrnediateiy She and her father 14 came out oi" the house. It is her further say that her father questioried the accused as to why he pelted stone at P.W..3 and at that time, the accused assat11ted_ her father with the Club causing him bleeding iHjt'I'Fy"{}il'«._tli.¢ head. Thus her evidence before the Court is--'i:oris'i::%l:e1"£_'t--.-- ~ with the eontemis of the Comp1a1ir_1t..1odgeci ll earliest point of time.
18. We have perused~._t'he cr.oss--e§§amii'?:a'tiod of "
P.W.1. There is al;).3t)lL1t€1fy""lillflfllillilg i'r'1'~-the crosse examination of this wit'n'e.s'sl'to.'7disbe].i'eye-her evidence. The faet injury on that day is not disputed bythe the trial.
_; P.Ws.,._Q;lll0V'and ll the doctors, who treated hospitals, have consistently stated that injury on the head. It is also in V . their evideiree that, during the treatment. in NIMI-IANS,
--.C>'Ps.sea1'im"ng was done and as per the s<:am2ing' report, ~ tl':etelwas displaeeci fracture of occipital home. All the three doctors have cleseribecl the r.3at.ure of the 11132213; as grievous. In the erosaexaminatiort of the docttcrrslraylxat, hae been suggested 15 that P.W.2 sL1st.a.inecl_.--a_ai'<fi' . on account of fall from a moving .tw<o__wheeler".--.'_f1'li'uS' the accused has not disputed the presei§ee'l of 'ir1j't1ry'o;i=--.i}F:1s%:
person of P.W.2. He has ..F';W.2 * L' had sustained fract.1,treuVof o'Ceio.i't:1l"h_one'. 'Hi.s_er1deavor was only to say for the injury founel, it was on account of a--.jraovirlgVj"t§x'o'whee1er. We notice from ithé" to 3 that they are neightloorere of However, it is not the ease of the acei1sed'.that'. there was any kind of ill will or eVIi:mCityr"a'between 'l?i'i's";Vfarnily and the family members of fto his false implication-. In the absence of arty sL;__{:l;.ill will or enmity. there was no reason for P.W. ..l_to falaely implicate the accused if there was really no '._si;u;:h incident of assault on P.W.2. 16 18 P.W.2 being the injureci eyerwitness has assert.ed that he was assauited by the accused by 21 eiub when he questioned the accused to why he pelted stone against his datighter. There is 11ot,hing"-iin-i:'the«V eross~exami:r1ation of P.W.2 to disbelieve i1is_eI.5iden.oe._<'i ;
His evidence with regard to assaim and fi._i.V1'i}'_L.i,IVv'Vy"V corroborated by rnediea} evidenee.V'7..
19. P.W.3 nodoubt a even 'do-ndthve when she gave evidence before T_:th§e.A Tne" learned Magistrate afterputting._soni.eV._Vpifeliifniinieifi questions to the Wi1i§)€S_S', the Witness was capable of giving fajtionai' .afi.sWeifs after properly understanding questions, Therefore, the examination of that Witness Wes .p€I7I"l"£jtJE{";d'.v __ has corroborated the testimony of fligand 2 with regard to the incident. Having "'d:fe§g;1'fc1ing to the evidence of P.Ws. 1 to 3 and the edrroborat.ive evidence c)fP.Ws. 9. 10 and 11 with regard to the presence of the iI}jL11"i€S and also the nature of the injuries, We are of the considered opimozi t,h.at""?:he Courts below are justified in holding prosecution has proved the iriciderit ._t1'ae"
nature of hurt caused to P.W.2. No f report. has not been produced-._before_tE:e C0iirVt.t.V4PerL_}.sati of cross-examination of P.Ws. O_a11d "1; that the accused has _t*h.ea eusteriance of grievous hurt byfV_P.VV.2.;w-Vtrifaet doctor, who treated stated in the eross-e§tairiin.atio19r3:'tha:t' v§fi':en ttievinjured was brought to St. Johrisi' the patient had brought theiiscanioiog tAr'epo1"t from NIMHANS and he lookefigl into the"'seVant1ing report and the said scanning V displaced fracture of occipital bone. TEiis"part_! evidence of P.W. 12 has not been ch:»1i1'e'nged.V-or :eor1tro*v'erted. In the absence of any cross- e><:ariiir12;§tio'r1";t(> P.Ws. 9, 10 and 11 with regard to the """«__"'r1ature-,_o'f injury stistained by P.W.2. W6 find no 3ubst.a:_1ee in the eubmission of the learned Cemisei with regard to non~produetion of the seaniiing report or the X--ray report. Theifefore, we find no e1'rr3i'"'*--,jor perversity in the judgment of the C011lfTi€-'~i ' convicting the 'c1£3C1Z.Sf3d for the offence puriisha.b1'e.A_i.t111de1'~« _A Section 326 of1PC.
21. With regard to the inatieqiiaey of concerned, we find that 1ea'I'nedef'.=Mé;gietrate sentenced the aceuseci;:to_ ;3iii"1}',)i€ inifirieonnlent for one year and to peiy'i'a_ whiie the learnefi Seseioiiis._'Jt1dgé~-.. modified the sentence of rigorous iiii.prisofir_11ent .to_;~9 months and to pay a fine of Asa disg:_fg_ssed supra, in the incident P.W.2 izati»_sue.tain_e'(E.__grievous hurt within the meaning of Seotion since P.W.2 had sustained displaced 'wV}.CI'E3tC"£11'i[Tt',!"{j)f occipital bone. He was first taken to the A XfgoV\?ier~nment hospital at Chi<::kba1ia1pu1", from there to NIMHANS and then to St. Johns Hospital. He was / I9 treat:eci iI1pE1tif;':ET1t for two days in St, Johns H<>spita13 and he must. have underg0r1e great. .';11T1€)tE1"it of pain and sufferings on accoumi of this injury. in E1ddif;i()ffi',---.>hC must have spent quite considerable ar1}Q_tfi:1t.'*:'§o*1fl treatment. medicine and transportatiorx. "'*.}:t', nve1'y..t_ strange to note that the 1ea1"neCf'Sess'i;)hs affirming the fine of Rs.500_/- ciéiireets Rs.25O/A» to be paid to eO'mjb'e:1sati{)nV;V The Order of sentence, in' sttbmitted by Mr. Bhavant a flea-bite sentenveehtttthmtifrtg the'V'hature and gravity of 0ffe1'1ee.xW The seem to have forgotten the sufferings (4)"4fx1.ieti'1'T1.A";l'he Courts are aiso required to .v.'"a.11evie1te'*the suffefihgs of the victim by imposing as fine and by directing substantial p()rt:4i0n,___"0f,:fine amount to be paid to the victim as H e..0mper1se1ti0n in exercise of powers under Section 357 Cr;'?~;C. The Apex Court about three decades ago itseif "has noticed that the Courts in our country have forgotten the p1'evisi()11s of Sec:t.i«:>1i1 357 CLPEC. and the priileipies ()fX'iCiiiiI}1(3i0gy. Hay-'i11g regard to the iblztteand ciretimstances 01' this CEISEZ we are of the Opj:£'1'i£ifi'4 the Sentence ordered by the pa1't:ieu1a1*1y, with regard to .A inadequate in the light of the e'}:__1ct thet"i:he L. Section 326 IPC is punishabie'«.;witVh ii'fip.ei_sen.rf=ient for ten years or it may exteht] _t0«._1ife
22. At this stag-ectit 'is_ to note the submission regard to the mentalig 'accused. Though it is contended" the'1e4é1:}rie:c1.'t'C4)0unse1 that even prior to the date'-iefvythe irici'd€I__1t_,ivthe accused was suffering from Pafanoid"Schizophrenia, no such defence was taken eithef bvefe:?'eV..e:'the triai Court or before the Appeliate 'w._Court... The1'efore, it is not open to the accused for the V'«iflfS'[,'."{_iifI1E3 to raise such contention before this Court proteeticm tinder Section 89 of PC. Assuming an that the eeeueed is emitied ti) 'raise such plea, whet we notice is that along with the appiieatien fi_1e§1~..4'_fer condonation of delay in filing the revision * accused has produced a Certificate' 'Au issued by NIMHANS. As per mocgygemge certificate, the accused was tfea.ted eitherAasVVi:1V3p'afient 'V or out-patient in NIMHANS {rare'1e.1.'.2fi)C3"ti1}'£he date of certificate. The indicate as to whether in the said hospital it is assumed that he certificate, it was oniy from the incident in question occurred o:o"1V1.v";2O'O£V3:: Therefore, this certificate does V. '"not'th'e_acc"e1Vs"edéVto contend that as on the date of '*the- Tin':Cid"ent,._.}~ he was suffering from Paranoid Seh§zop_111*efi'ie.. Except this certificate, no documentary J'evifienee"ie produced before this Court to show either to or as on the date of the incident viz"
""1?}.11.2003, the accused was suffering frem Paraneid 5'?
Schiicophreriia. Learned Counsel for the accused sought to produce some prescriptions issued by NIMHANS.
23. We have perused those prescriptions also-and those prescriptions are Subsequent. to K Therefore, we find no material on record" that-. the accused was suffering from Para_noid"«Schizopiareniaidi as on the date of the incident Therefore, the-i.a(fcnse'd not entitled for the benefit u{:ri_'Cier of IPC. However, the doctnments. non? piiacedivviwould indicate the present mental condit.ionv:of_ .g1At some point of timebetween.':2t3;1_'1';~S%GQ3 to 13.8.2006, the accused was treated "at for Paranoid Schizophrenia. The«ftorescriptiioiifi.f3.QW' sought to be produced by the '§£3LS[i'I3V€d,V'vC~0U[}EiS€1 runs upto the year 2007. According to t,he'=iearr1e'd jtilounsei, on account of the continuous rnedicatiioriv, the accused presentiy is not suffering' from A CfrnVerit.eA1i disorder as mentioned in the certuificate issued ' NIMHANS and his rnentai condition is under control on a«::<:ount of the E11€di(?8.'€',iOI1. Having 1"eg.:gar'd to the fact that for nearly about 2 1/2 years or 3 years, subsequent to the incident., the ac:c:u.sed had been treaited for Paranoid Schizophrenia in NIMHANS, Banga}oi'--e,' of the opinion, that the sentence as ()rd.e'1*edeV..¥V5y'd the V' iearned Sessions to undergo iI11§)rison1:n'ent; 9 n10nth's appears to be on the higher side7._as,_such 'VztAd'ese1"veseto--.. be modified. In our opinion.,V."ends o'f_jt1etjCe:v;wo'uld be met if he is senten<:e'<i_ to _«'u11de3fg;oviSii. forsidx months. However taking into eoii_si-derathioxifii ._ the sufferings undeVi'goneAV.h§f§v the act committed by accusvedid opinion, that the sentence reggrfilnéddjdp5i3'fi1er1t.'*_dot";i"1ne deserves to be enhanced. ff consideration the facts and circumstances are of the opinion, that the ends of _]us_tic:e,.Wot1Ed be met by directing the accused to pay a " fine oi7V_;F<s.25.OOO/~ [Rupees twenty five thousands only]. 4"»
24. A(',C()I"(liI1gly., the I'E3\«'iS.l{)I1 petition and the appeal are allowed in part. The fiidgmerrt of conviction recorded by the trial court and affirmed by the Appellate Court convicting the accused for the offence under Section 326 IPC. is hereby affirmed. _ modification of the order of sentence paseed the trialu W 2 Court as well as the lower Appellate:1€Q?;1rt,._the"aeeft;1eeAc;E_e is sentenced to undergo S.Iv.':_f'e.r 6 Inonths pay a fine of Rs.25,000/- {Rupees t$§re13ty*..{rve only] for the offence punishable {PC and in default to "pay _t€;..;l'undergo 8.1. for another six months.W O11 fine amount, a sum of Rs.2Q;0O0/ [I:l2upeee."-ti2§'ent.y thousand only] shall be . paii:i= cornpenlslation to P.W.2/the injured. The efntliltled for the benefit. of Section 428 of cr.l>.cl T he accused shall forthwith surrender before V' trial court and on such surrender the learned
2.,» mag.-_§ist:rat.e $112111 eommif: him to prison to serve the sentence. if aeeuseci faiis to surrender, {he trial court:
Sinai} 1:e1ke neeesssary steps to secure his presen(:e'."a11d Commit him to p:rise'r1. At, the time of admitt:1_2§§- accused in to the jai} for serving; i.he.v__5_e~z1te;E1Ce ::Ls~ modified by this judgement, t:he:' the present mental eorlditieenaof fhe "aecu.-."~:eii 1 e v2'i1u'i;1t.ed and take necessary action acC'6::e11ng1y. " V' 6§§D§$ EEESE